A Feminist Theory of State Responsibility for
Violence Against Women:
Is the Due Diligence Standard an Appropriate
Tool for Actualising Primary Prevention?
Helen R. Griffiths
A thesis submitted for the degree
of Doctor of Philosophy
Summary
Over the past forty years the transnational women’s movement has worked to conceptualise and institutionalise the understanding of violence against women as a gendered human rights violation. Their efforts have led the response at the international level, and have shaped the (markedly feminist) international human rights law approach to violence against women.
Despite successes in conceptualising and institutionalising norms concerning the elimination of violence against women, there remain problems in
implementing these norms and holding states accountable. As such, violence against women is still pandemic, affecting at least one in three women. An area worthy of additional research and attention is state responsibility for prevention – particularly primary prevention, aimed at the ‘upstream’ or ‘root’ causes of violence against women – and the use of the due diligence standard as a tool for actualising this obligation. The due diligence standard is a
significant development of state responsibility, which, within the context of human rights protection, broadens notions of state responsibility to include instances where there is a failure to exercise due care to prevent or respond to violative acts or omissions of private or non-state actors. In the context of violence against women, this provides a ‘juridical bridge’ for addressing private violence, particularly domestic violence, as a human rights violation, for which the state can – and should – be held accountable. The evolution of ‘systemic due diligence’ – aimed at the broader level of human rights protection – has furthered this feminist theory of state responsibility.
The aim of this thesis is to deepen the understanding of violence against women as a gendered human rights violation and to discover how the due diligence standard can be better used as a tool to bring about its elimination; if, indeed, it is fit for this purpose.
Contents
Dedication iv
Introduction 1
Chapter 1: Feminism as Method: Consciousness Raising, Positionality
and Questioning. 6
Constructing new knowledge 24
Chapter 2: Violence Against Women and International Human Rights Law: The Development of an International Legal Paradigm Rooted in the Radical Feminist Theory of Positionality.
40
The international human rights law response to violence against
women 43
Key principles underpinning the development of a radical feminist
international human rights law approach to violence against women 55
Summary of radical feminist human rights approach to violence against women
95
Chapter 3: A Feminist Theory of State Responsibility, Part 1: The Conceptualisation of Primary Prevention within International Human Rights Law, and the Problematisation of Theorised Practice therein.
97
The development of a feminist international human rights law approach to primary prevention
98 Case study: Problematising theorised practice and the engagement
of men and boys in primary prevention 145
Chapter 4: A Feminist Theory of State Responsibility, Part 2: How Effectively does the Due Diligence Standard Actualise the Feminist Conceptualisation of State Responsibility for Primary Prevention?
182
The development of due diligence within international human rights law and its application to violence against women
190 Assessment of the legal and sociopolitical significance of the due
diligence standard with regard the elimination of violence against women
244
Conclusion 278
Bibliography 281
Dedicated to Alice and Jean, the women who raised me, and to my strong and beloved sisters and nieces.
With special thanks to:
Professor Rashida Manjoo, Professor Jackie Jones and Dr Claire Malcolm, who gave me invaluable opportunities to listen, to learn, and to contribute;
and who generously shared with me the platforms that they had earnt. Professor Peter Sutch for encouraging, challenging, and listening to me
throughout this project.
Taylor Jones for teaching me (both within the law and within our communities) to put in the hard work that justice demands of us.
Tom for supporting this project in countless practical ways.
Introduction
The transnational women’s anti-violence movement is now at a mature stage of development. It is nearly 40 years since the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) was signed into law, and over 25 years since the CEDAW Committee made General Recommendation no. 19 (1992) on violence against women and the world community united behind the Declaration for the Elimination of Violence Against Women (DEVAW, 1993). The transnational women’s movement has worked across this time to conceptualise the understanding of ‘violence against women’1as a specifically gendered human rights
violation, and this has led efforts to institutionalise a response at the international level, particularly within the field of international human rights law.
1Throughout my thesis I rely on the definition given in Article 1 of the Declaration for the Elimination of
Violence Against Women and Beijing Platform for Action, as framed by the efforts of the transnational women’s movement during the international conferences. This definition is used by women’s
organisations around the world. Violence against women is ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life.’ (United Nations, Report Of The Fourth World Conference On Women: Beijing Declaration and Platform for Action, paragraph 113 and General Assembly resolution 48/104, Declaration for the Elimination of Violence Against Women, A/RES/48/104 (20 December 1993), Article 1). In Chapter 2 I will explain more fully the history and development of the term ‘violence against women’ within the international human rights law discourse, as well as detailing the significance of its feminist conceptualisation and focusing on the importance of its framing as ‘gender-based violence’ (meaning violence that is gendered and discriminatory). For now it is enough to note the framing and jurisprudential roots of the term within the two primary international legal sources focused on violence against women: the DEVAW and General Recommendations nos. 19 and 35, clarifying the inclusion of violence against women under the Convention on the Elimination of Discrimination against Women. The DEVAW Preamble states that: ‘violence against women is a manifestation of historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms by which women are forced into a subordinate position compared with men.’ (General Assembly resolution 48/104, Declaration for the Elimination of Violence Against Women, A/RES/48/104 (20 December 1993), Preamble, available from http://undocs.org/A/RES/48/104) The CEDAW Committee supports this definition by describing violence against women as: ‘[v]iolence that is directed against a woman because she is a woman, or that affects women disproportionately.’
(Committee on the Elimination of Discrimination against Women, general recommendation No. 19, 11th
session, A/47/38, (1992), paragraph 6, available from http://undocs.org/A/47/38) The CEDAW Committee further clarifies the definitions given by the DEVAW and General Recommendation no 19, and outlines the evolved understanding of this framing by offering further definitional clarity of the term: ‘The concept of ‘violence against women’ in general recommendation No. 19 and other international instruments and documents has emphasised that this violence is gender-based. Accordingly, this document uses the expression ‘gender-based violence against women’, as a more precise term that makes explicit the gendered causes and impacts of the violence. This expression further strengthens the understanding of this violence as a social – rather than an individual – problem, requiring comprehensive responses, beyond specific events, individual perpetrators and victims/survivors.’ (Committee on the Elimination of Discrimination against Women, general recommendation No. 35 on gender-based violence against women, updating general recommendation No. 19, CEDAW/C/GC/35, (2017), paragraph 9.)
Despite successes in conceptualising and institutionalising norms concerning the prevention and elimination of violence against women, there remain problems in implementing these norms and holding states accountable to their duties to prevent and eliminate violence against women. As such, violence against women is still pandemic, posing one of the greatest threats to the lives and wellbeing of women globally. Affecting at least one in three women, violence against women continues to have devastating impacts on women across all racial, religious and socioeconomic groups, and is worthy of further and greater efforts, involving innovative research and action, to bring about its elimination. An area worthy of additional research is state responsibility for prevention – particularly primary prevention, aimed at the ‘upstream’ or ‘root’ causes of violence against women – and the use of the due diligence standard as a tool for actualising this obligation. The due diligence standard is a significant
development of state responsibility, which, within the context of human rights
protection and fulfilment, expands state responsibility to include instances where there is a failure to exercise due care to prevent or respond to violative acts or omissions of private or non-state actors. In the context of violence against women, this provides a ‘juridical bridge’2for addressing private violence, particularly domestic violence, as a
human rights violation, for which the state can – and should – be held accountable.
The aim of my thesis is to further the understanding of violence against women as a gendered human rights violation and to discover how the due diligence standard can be better used as a tool to bring about its elimination; if, indeed, it is fit for this purpose. My primary concern throughout is related to the conceptualisation, framing and understanding of violence against women, as good practice relies on sure
methodological and theoretical foundations, and the institutionalisation of this framing. As such I will be examining: both the epistemological and methodological
underpinnings of the feminist response to violence against women (Chapter 1); the framing and institutionalisation of violence against women as a human rights violation within the international setting (Chapter 2); the normative and legal development of primary prevention (Chapter 3); and, the effectiveness of the due diligence standard as
2Elizabeth A. H. Abi-Mershed, “Due Diligence and the Fight Against Gender-Based Violence in the
Inter- American System,” InDue Diligence and its Application to Protect Women From Violence, edited by Carin Benninger-Budel, (Leiden, The Netherlands: Martinus Nijhoff Publishers, 2008), 128.
a legal and sociopolitical tool for actualising a feminist account of state responsibility and accountability (Chapter 4).
My approach to these questions is framed by my own experience of the co-constitutive nature of feminist theory and practice, and what I argue to be the significance of theorised practice of, and in, the law. Attention is paid both to the institutional and discursive space – and the relationship between the two – crafted by feminist engagement with international human rights law; and, throughout, effort is made to draw out the richness and importance of the feminist underpinnings of both the international institutional and discursive response to violence against women. In part, this is in opposition to engagement with the international human rights law approach to violence against women that is untheorised, depoliticised and gender-neutral. In itself, maintaining the institutional gains and discursive space created by the transnational women’s movement is a worthy and necessary task that runs throughout my thesis. Beyond this, I hope to build on this ground and push towards greater institutional and discursive space for women, and in particular women’s experience of violence against women.
I plan to bring together sociopolitical and legal analysis of the international human rights law approach, with particular engagement with, and review of, the case law of the CEDAW Committee under the Optional Protocol, and the Inter-American Court and Commission of Human Rights, and the European Court of Human Rights. This will be underpinned by analysis of the theoretical and legal framing provided by feminist theorists, activists, lawyers, and practitioners, in the field of violence against women. Whilst reference to the case law of the regional bodies shapes my analysis of the due diligence standard, I have tried to focus, where possible, on the norms of the
international community at the broadest level, as expressed through the many auspices of the United Nations – posed as they are, as representing a significant global
consensus and universality. The varied workings and trappings of the UN fora make comparative analysis challenging, and I have chosen to highlight and focus on the work of the Special Rapporteur on violence against women, its causes and consequences, and the CEDAW Committee, in particular.
The scope of my thesis considers violence against women broadly, but there is undoubtedly a higher level of attention paid to the particular problem of domestic abuse. Whilst domestic abuse is only one form or manifestation of violence against women, it is by far the most common and most pervasive. It has also been heavily privatised until recent decades, and has, over the past five to ten years, become a contested issue again, as the inclusion of men’s experience of domestic abuse raises fresh questions about the gendered conceptualisation of domestic abuse. Whilst domestic abuse is heavily focused on, it is not the sole focus of my research, and my intention is not to separate domestic abuse from other forms or manifestations of violence against women, other than to highlight it due to its pervasiveness. The gendered analysis of domestic violence provided in my thesis extends to violence against women more broadly.
Given that I’m taking a radical feminist approach to preventing violence against women, it is worth at the offset addressing the question of ‘why international law?’ Engagement with the law is not unproblematic or without challenges, and throughout the thesis these challenges are highlighted and negotiated (particularly in Chapter 1). Nor is engagement with the law presented as the sole response required, or indeed, necessarily, the most important response. This said, engagement as an activist and practitioner – with over a decade’s experience working with disenfranchised and at-risk young people – has only served to bolster my belief in engagement with
international law; so often characterised as distant and distinct from our daily, material experience. The state as a hegemonic cultural actor is the source of much of the framing, creation, and perpetuation, of the patriarchal norms that structure our society at the broadest level, but also that permeate levels more intimate to the individual. State responsibility for primary prevention engages the state at this level and seeks to challenge the state’s role as a creator and curator of culture. Accountability at this level is required for accountability at the intimate level of the individual. International human rights law can (and does) serve as part of this challenge and reframing at the broadest level; and whilst beset with challenges – particularly the ongoing dominance of men in international law – remains one of the best ways of renegotiating the power of
women’s citizenship, and the power of the state. Engagement with the law throughout my thesis is premised on the hope of strengthening the transnational women’s
creating and claiming further space for women to renegotiate the shape of the social, political and legal society that shapes their lives.
Chapter 1 – Feminism as Method: Consciousness Raising, Positionality and Questioning
To explore the international human rights law approach to violence against women, and to clarify and expand on the understanding and application of the due diligence obligation to prevent violence against women, I will be relying on theory and
methodology rooted in radical feminism. The choice to use a radical feminist lens was not taken prior to engagement with the international human rights law approach to violence against women, but was determined by exposure to the theory and method of feminism, and specifically radical feminism, through interaction with the international human rights law approach to violence against women itself. As this approach has been established and shaped by feminism, likewise my chosen method has been established and shaped by engagement with the approach. The second chapter of my thesis elucidates on this experiential grounding in radical feminism, through exposure to the law, including exposition of the main tenets of the international human rights law approach to violence against women and their basis in this strand of feminism. Whilst it may seem obvious to those with awareness of the politics and
methodologies of feminism, that the international human rights law approach to
violence against women is feminist, this is not obvious to all, and indeed not obvious to all who participate in the discourse. Furthermore, the distinctive character of the international human rights law approach to violence against women as rooted in radical feminism, seems even less obvious. As I will explore in later chapters, the more recent use of non-feminist methodologies within the expounding of the approach can be contradictory to the purposes of the law when untheorised and lacking the correct understanding of its feminist character. Whilst the evolution of the women’s
movement continues to progress the understanding and methodologies of feminism, and to a lesser degree the jurisprudence surrounding the international human rights law approach to violence against women, the law itself has specific historicity and jurisprudential roots. Whilst one might expect these roots to be liberal in character, due to the law being liberal in nature, they are in fact not liberal. They are distinctly radical.
In Chapter 2 I will look at these roots, considering: substantive law, jurisprudence of the relevant international courts and treaty monitoring bodies, and the work of expert
bodies. However, the character of the international human rights law approach as feminist, and my own methodology, is not composed of substantive positions only. The theoretical and methodological character of feminism, as expounded by radical feminism, runs throughout, and lies beneath and beyond, these substantive positions, and creates its own discursive space within the international human rights law
approach to violence against women. As such, I will clarify my use of radical feminism as a theoretical and methodological framework before considering the substantive positions within the international human rights law approach, which stem from this. Again, as will be shown in later chapters, methodologies or approaches that are sympathetic to, or incorporate, these substantive positions, but do not have beyond them a feminist methodology, underpinned by feminist epistemology, are ineffective in utilising the international human rights law approach to its proper purposes and ends.
As will be shown in Chapter 2, principal tenets of feminist thinking have led the international human rights law approach to violence against women – namely the problem of patriarchy and the understanding of violence against women as gendered and discriminatory. There is a clear theoretical and political framework for
understanding violence against women. In this chapter I am interested in whether this theoretical framework works as a methodology for (legal) change or whether it is limited to critique or a list of substantive issue-based positions. Does feminism have a (legal) methodology? Or, is it a (legal) methodology? I believe it is a method and I will establish in this chapter how I intend to use it to analyse, interpret and expand upon the international human rights law approach to violence against women, and
specifically the issues of prevention, due diligence and state responsibility.
My use of feminism as a methodology is heavily influenced by the work of Catherine MacKinnon and Katherine Bartlett, in particular, MacKinnon’s work in Feminism Unmodifiedand Toward a Feminist Theory of State. More broadly I am influenced by other second wave thinkers, such as Sandra Harding, Andrea Dworkin, Gloria Steinman, Shelia Rowbotham, Nancy Hartsock, Kate Millet, and Susan Brownmiller. These voices are predominantly radical feminists, with the exception of Shelia
Rowbotham and Nancy Hartsock. Whilst I reference Rowbotham and Hartsock’s work on consciousness, as will be shown, I further extend their thinking to a radical feminist view of consciousness. My thinking on the methodologies of standpoint and
consciousness-raising is heavily shaped by the work of postcolonial feminists such as Chandra Talpade Mohanty and Lourdes Torres, and Black feminists such as Patricia Collins and Audre Lorde. My epistemological concerns with positionality and
consciousness are perhaps best taken up by postcolonial queer feminist theorist, Gloria Anzaldúa, and I rely heavily on her work, Borderlands/La Frontera: The New Mestizain drawing together my own thoughts. Whilst I will lean more on feminist international legal scholars during my review of international human rights treaty and customary law (Chapters 2 and 3) – predominantly Christine Chinkin and Hillary Charlesworth, but with reference also to Rashida Manjoo, Rebecca Cook, Charlotte Bunch, Sally Goldfarb, Rhonda Copelan, and Renée Römkens – I want to look first at the foundations of feminist legal thinking more broadly to establish my methodology. Whilst my exposure to radical feminism was through international human rights law scholars, the methodology predates the work of Chinkin, Charlesworth and others, and I wish to deepen my own understanding of how the second wave established and shaped the international human rights law approach to violence against women. Whilst Bartlett, MacKinnon and Hartsock don’t focus specifically on international human rights law and violence against women, I believe review of their work is necessary to
understand the theoretical and methodological character of the substantive positions outlined in international human rights law and developed by the international human rights law scholars who followed, such as Chinkin and Charlesworth. In engaging with the theoretical, methodological, and epistemological roots of the feminist approach, I expect to come up against a key question: can radical feminism, as a legal
methodology, lend itself to constructive/reconstructive – as well as
critical/deconstructive – jurisprudence? If it can, I intend to explore how. If I conclude that it can’t lend itself to constructive/reconstructive jurisprudence I will have to consider how this might affect any substantive positions I was expecting to take in clarifying prevention and establishing a feminist framework for systemic due diligence.
Before problematizing the application of (radical) feminist method to the
deconstruction and reconstruction within the law, it is worth noting the relationship between the more broadly denoted ‘feminist approaches to intentional law’3and
(radical) feminist methodology. Whilst it was through Chinkin and Charlesworth’s
3Hilary Charlesworth, Christine Chinkin, and Shelley Wright, “Feminist Approaches to International
work that I became familiar with feminist approaches to international law – part of the broader critical international scholarship known as the ‘new approaches to
international law’ (NAIL)4– it was evident in their appeal to deeply politicised
understandings of gender and gendered issues of the law, that a more radical and wide-reaching methodology belied the international legal approach. Similarly, whilst ‘feminist jurisprudence’5, more broadly, speaks to ideas introduced (largely) by North
American scholars such as Ann Scales, Catherine MacKinnon, Martha Fineman,
Christina Brookes Whitman, Christine Littleton, Carol Smart, and Mary Mossman,6the
scholarship finds deeper and wider roots in feminist political theory. Deeper in the sense that it builds on a critical approach already well established which looks beyond the law to fundamental issues of gender and power, and wider in the sense that it draws from a far broader critical spectrum of feminist input (from philosophy, history, and psychology) than the often liberal framing of legal theory, methodology and the study of jurisprudence. The predominantly legal theorists originating the work on feminist jurisprudence in the 1980s, and the feminist approaches to international law in the 1990s, regularly appealed to a deeper well of critical and radical methodology (rooted in second wave feminism) when grounding their own legal theorising and contributions on methodology, and drew broadly from critical race theory alongside feminist political theory.7 For instance in her landmark essay, ‘The emergence of
4José María Beneyto and David Kennedy, eds., New Approaches to International Law: The European and
the American Experiences,(The Hague: T.M.C Asser Press, 2012); Thomas Skouteris, “Fin de NAIL: New Approaches to International Law and its Impact on Contemporary International Legal Scholarship,”
Leiden Journal of International Law,10, (1997): 415 – 420.
5First coined by Ann C. Scales in the 1970s.
6Ann C. Scales, “Towards a Feminist Jurisprudence,” University of New Mexico School of Law, 56(3),
(Spring 1981): 375 – 444; Ann C. Scales, “The Emergence of Feminist Jurisprudence: An Essay,” Yale Law Journal, 95, (1986): 1373 – 1403; Ann Scales, “Feminist Legal Method: Not So Scary,” UCLA Women’s Law Journal, 2, (1992): 1 – 34; Catherine MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” Signs, 8(4), (1983): 638 – 639; Catherine MacKinnon, Feminism Unmodified: Discourses On Life And Law, (Cambridge: Harvard University Press, 1987); Catherine MacKinnon, Toward a Feminist Theory of the State, (Harvard: Harvard University Press, 1989); Catherine MacKinnon, “Toward Feminist Jurisprudence,” In Feminist Jurisprudence,Patricia Smith, ed,. (New York: Oxford University Press, 1993); Martha Fineman and Nancy Sweet Thomadsen, At the Boundaries of Law: Feminism and Legal Theory, (New York: Routledge, 1991); Martha Fineman, “Feminist Theory in Law: The Difference It Makes,” Columbia Journal of Gender and Law, 2, (1992): 1 – 24; Christina Brooks Whitman, “Feminist Jurisprudence,” Feminist Studies, 17, (Fall 1991): 493 – 507; Christine Littleton, “In search of a Feminist Jurisprudence,” Harvard Women’s Law Journal, 10, (Spring 1987): 1 – 7; Carol Smart,
Feminism and the Power of Law, (New York: Routledge, 1989); Mary Jane Mossman, “Feminism and Legal Method: The Difference it Makes,” Wisconsin Women's Law Journal, 3 (1987): 147 – 168; Mary Jane Mossman, “Feminism and the Law: Challenges and Choices,” Canadian Journal of Women and the Law, 10, (1998): 1 – 16.
7Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1374; Angela P. Harris, “Race and
feminist jurisprudence’, legal scholar Ann C. Scales describes how radical political theorists challenged her formation in liberal legal theory and methodology, without which she says: ‘I would probably have been trapped by legal education into believing the paeans to objectivity which are the target of my criticism.’8She goes on to say:
‘[f]ocusing primarily upon the work of Ludwig Wittgenstein, Carol Gilligan, Dorothy Dinnerstein, and Adrienne Rich, I arrive at an endorsement of Catharine MacKinnon's radical feminist legal theory.’9
The relationship between legal theory and jurisprudence and (radical) feminist theory sparked contention – both for lawyers and theorists: ‘could such a feminist agenda be accommodated within the legal system?’10And ‘[i]n what sense can legal methods be
‘feminist?’11A body of scholarship grew in the 1980s focused on these questions –
particularly where the more radical ideas of feminist theory were integrated into critical legal analysis and methodologies.12Indeed debate continues as to whether
radical feminism is concerned with issues too fundamental – and too closely entwined with the kind of power that the law upholds – to attempt to navigate or utilise the law as a tool for systemic change. More will be said on this later.
Beyond bringing a challenge to how legal systems address the lives of women – as liberal (feminist) legal methodologies might – radical feminism was concerned more fundamentally with the root causes of women’s oppression, and how the law has been used to maintain this oppression. This marked a significant shift in approaches to the law as it questioned the objectivity of the law and presented a foundational ‘challenge to the status quo.’13This shift symbolised a discontent with the legal methodologies
available for interrogating the law as it concerned the lives of women – seen as they were as ‘offer[ing] little opportunity for fundamental questioning’14. Legal scholars
called for recourse to radical feminist political theory – and the work of ‘non-legal’15
Schneider, “The Dialectic of Rights and Politics: Perspectives from the Women’s movement,” New York University Law Review, 61, (1986): 589 – 652.
8Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1374. 9Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1374. 10Mossman, “Feminism and Legal Method: The Difference it Makes,” 149. 11Bartlett, “Feminist Legal Matters,” 830.
12Scales, “Law and Feminism: Together in Struggle,” 291 – 296; Bartlett, “Feminist Legal Matters,” 830. 13E. Langland and W. Gove, eds., A Feminist Perspective in the Academy: The Difference It Makes,
(Chicago: University of Chicago Press, 1981), 3.
14Mossman, “Feminism and Legal Method: The Difference it Makes,” 149. 15Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1373.
theorists – as a necessary challenge to the ‘vocabulary, as well as the epistemology and political theory, of the law as it is.’16In particular, legal scholars utilised and applied the
epistemology of feminist methods as it relates to consciousness-raising – a ‘way of knowing’17most commonly called on by radical feminists. This built on, but was distinct
from, critical legal theory and its methodologies. More will be said on consciousness-raising and its importance to my approach later, but for now it is enough to note the role of radical feminist method as bringing not only a critical and political challenge to the law, but also to legal theory – questioning, as it did, conceptualisations of
knowledge and power and how they inform the law and critical engagement with the law.
Returning now to my own approach and experience – which has been formed through mutually constitutive engagement within academic and activist fields – it is helpful to first clarify how feminism as a method differs from the common perception of feminism as an agenda (as found within campaigns for substantive legal provisions), and why it is imperative that the two be understood as distinct, as well as mutual.
Without an account of method feminism becomes limited as a legal tool for reform, as method ‘organises the apprehension of truth; it determines what counts as evidence and defines what is taken as verification.’18Catherine MacKinnon describes the
significance of method aptly: ‘[t]heory appropriates reality in a certain way – its way is method – to make the world accessible to understanding and change.’19Katherine
Bartlett makes a clear case for the need to understand feminism as a method:
Method matters […] because without an understanding of feminist methods, feminist claims in the law will not be perceived as legitimate or ‘correct’. I suspect that many who dismiss feminism as trivial or inconsequential
misunderstand it. Feminists have tended to focus on defending their various substantive positions or political agendas, even among themselves. Greater
16Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1376.
17Mossman, “Feminism and Legal Method: The Difference it Makes,” 148l; Katherine T. Bartlett,
“Feminist Legal Matters,” Harvard Law Review, 103(4), (1990): 830; Scales, “The Emergence of Feminist Jurisprudence: An Essay,” 1401; Ann Scales, “Law and Feminism: Together in Struggle,” University of Kansas Law Review, 51, (2003): 293.
18MacKinnon, “Feminism, Marxism, Method, and the State: An Agenda for Theory,” 527. 19Catherine MacKinnon, Are women human?,(Harvard: Harvard University Press, 2007), 43.
attention to issues of method may help to anchor these defenses, to explain why feminist agendas often appear so radical (or not radical enough), and even to establish some common ground among feminists.20
In her influential piece, Feminist Legal Methods, Bartlett goes on to clarify that method is not valid because it holds no substantive positions – as no methodology is
completely non-substantive – rather she argues that the validity of a method rests on its relationship to substantive law being ‘defensible.’21
Therefore, key to understanding feminist method is problematising and negotiating its relationship with substance. Attention is frequently given to substantive positions at the expense of understanding method. The common perception of feminism as a
campaign of demands or ‘women’s issues’ limits feminist theory and overlooks the structural nature of feminism as method. Consequently it will also limit substantive change, as method is essential to achieving change. The outworking of feminism changes the lives of women in substantive ways that can be articulated in a clear and determined fashion: suffrage, reproductive rights, eliminating violence against women, equal pay, maternity leave, to name a few. However, the ghettoising of women’s rights as an issue-based agenda undermines feminism. These substantive rights are the fruit of feminism. Whilst the fruit is eagerly desired, attention focussed solely, or narrowly, on substantive positions can confuse the understanding of feminism as a method. Various groups further the misunderstanding of feminism as method in differing ways. Within the women’s movement feminists can foster this confusion by their understandable eagerness for substantive change. As Bartlett suggests, this can become divisive. Women are not connected by our ‘wants’ or ‘needs’, though we might connect around these, but rather we connect inour want – in the shared experience of both the deficit, oppression, or marginalisation, and in the resilience, opportunity, and community formed in response. We’re connected by who we are – our historically, materially, socially located identities. Defining us by what we want or need, or are perceived as wanting, is limiting. We may want different things. We may already have different things. The meeting point for feminists must remain method. When it
20Bartlett, “Feminist Legal Matters,” 831. 21Bartlett, “Feminist Legal Matters,” 832.
becomes substantive positions we lose commonality and validity. We unite through method.
The blurring of method and substance is also furthered by voices outside the women’s movement. A campaign of issue-based change is much more easily understood than a method for systemic change and transformation; especially from an audience who can’t understand, or don’t want to see happen, systemic change. Men may identify with a campaign based on a substantive list of demands, or ‘wants’, as this is how they regularly engage in community, society, law and the state. The system is established to hear and amplify their voice such that they need only express their desires. As the system is made in their image and set in their favour they need only articulate the change they wish to see. They need no method or theory; they have, instead, ‘reality’. The unpicking of the system isn’t on the agenda. In light of this, even men who may sympathise with feminism can most easily do so through substantive issue-based change. As a man, to join feminism as an issue-based campaign is to add your voice to a simple cry for ‘more’. For men to add their voice to feminism as a methodology for systemic change becomes problematic if not altogether impossible. How can men, through their voice, object to the system that amplifies their voice without furthering the noise and feeding the system? This raises the question of who can be involved and how. If men can add their voice to a campaign for substantive change, they may well. Those who sympathise may see it as a way of supporting women. Those who fear more systemic change may do so to limit feminism to the issue at hand hoping to avoid greater change. Considering feminism as a methodology raises the old question: can men be feminist? (Or how can men be feminist?) In fact, if it is about substantive change only, does it matter if this is achieved through sympathetic men using their voice within the system? Feminism reduced to substantive demands may give room for men as feminists. Feminism as a methodology may not.
Whilst ruling men out as allies is not the aim here it is imperative to note the
significance of voice and positionality when considering method and, more specifically, the application of feminist method. I would suggest that positionality, as lived in ‘consciousness raising’ and ‘questioning’, is the epistemological grounding of feminist methodology. When speaking of positionality, I purposely speak more loosely than feminist standpoint theory. One might question if there is a difference. Positionality and
consciousness-raising are arguably the foundations of standpoint theory, and so I will walk a close, if not interlacing path, with the theory. However, standpoint theory, has two major problems, which I wish to avoid; one of methodological importance and the other of symbolic understanding and application. Standpoint theory is linked most closely with Marxist feminist theory, and relies heavily on Marxist ideas of
consciousness, running a parallel discourse about gender as it does about class struggle. Whilst, I would agree that there should be focus on intersections between gender and class, I do not agree that Marxism, and Marxist theory, should simply be applied to women, as feminism. Whilst Marxist feminism and radical feminism may
(predominantly) take similar critical realist approaches to gender, I would understand them as differing in their epistemological apprehension of consciousness, in particular, the privileging of knowledge. This is borne out in understandings of standpoint and positionality.
My methodological approach will be based on positionality, consciousness-raising and what Bartlett terms ‘asking the woman question’22. Whilst this reflects and forms part
of standpoint theory, my understanding and application of these methods lacks adherence to the Marxian ideas of positionality and consciousness that are usually identified with standpoint theories, and in particular the implication of privileged knowledge. In Signs,Winter 1997, Susan Heckman questioned the underlying Marxist epistemology of Nancy Hartsock’s Standpoint Theory. ‘Truth and Method: Feminist Standpoint Theory Revisited’ is a key piece in the wider debate surrounding Marxian epistemology and standpoint theory, prominent in the 1990s. Hekman questions the ability of standpoint theory to articulate and privilege truth given the theory operates within a ‘social constructivist theory of the subject.’23In the same edition, Hartsock
gives comment on Hekman’s piece, arguing Hekman views standpoint theories
through ‘a kind of American pluralism that prefers to speak not about power or justice but, rather, about knowledge and epistemology.’24Instead, Hartsock restates the
importance of standpoint theory in deconstructing and challenging the power relations
22Bartlett, “Feminist Legal Matters,” 837.
23Nancy Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory
Revisited”: Truth or Justice?,” Signs, 22(2), (Winter, 1997): 367.
24Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth
which structure knowledge and understanding arising from social locations.25Whilst I
find Hartsock compelling, I am left with epistemological questions about standpoint theory. However, it is not my aim, and it is beyond my current apprehension, to resolve these here. Furthermore, whilst epistemological questions remain, there is consensus between Marxian, radical, and postcolonial feminists that feminist
consciousness – whether closer to ‘reality’ or ‘truth’ (or not) – is closer to ‘a definition of less repressive society.’26In this way standpoint theories are to be understood as
‘counterhegemonic discourse’27. Further to this, I would align to Patricia Collins’
understanding of standpoint as offering ‘specific’ and ‘multiple’ knowledge rather than ‘privileged’ truth.28Collins challenges the implication that ‘the more subordinated the
group the more power the vision available to them.’29She suggests this reflects the
‘binary thinking’30of standpoint’s Western, Marxian origins, and is an ‘additive
analyses’31of standpoint theories. This consensus and adherence to positionality and
consciousness-raising as the chosen methodology of feminism is wave and cross-theory, and so epistemological questions surrounding standpoint theory are not detrimental to my methodological approach.
Whilst my initial concern with the characterisation of my methodology as standpoint theory is based upon ongoing epistemological debate, my secondary concern, linked to the first, regards the status and symbolism of standpoint theory within the feminist movement. This is more troubling to me than the epistemological questions – if standpoint theory, an attempt to foreground the lived experience of women, is seen as exclusive or essentialist by the voices it seeks to advance, then it really lacks merit. Again, I will not seek to give any kind of full answers to this debate, other than to find again, what is still seen as relevant and representative by the wide cross-section of the women’s movement. Whilst standpoint theory was increasingly criticised as universalist and essentialist, third wave feminism (influenced heavily by Black feminism, Black
post-25Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth
or Justice?,” 367.
26Susan Heckman, “Truth and Method: Feminist Standpoint Theory Revisited”, Signs, 22(2), (Winter,
1997): 345.
27Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth
or Justice?,” 367.
28Patricia Hill Collins, Black Feminist Thought, 2nded. (London: Routledge, 2009): 289. 29Collins, Black Feminist Thought, 289.
30Collins, Black Feminist Thought, 289. 31Collins, Black Feminist Thought, 289.
structural feminism, post-colonial feminism, and transnational feminism)32, still
forefronts the lived experience of women and advocates consciousness-raising as method.33In so doing, third-wave feminists also maintain the significance of group
consciousness. Whilst some post-structuralists, like Hekman, appear to argue that groups are merely ‘aggregates of individuals’34, the appreciation of the group as a
collective voice – as constituted through construction and reconstruction by way of consciousness-raising – is still common in third wave theory and practice.
Although third wave feminists tend not to utilize the small group format for consciousness-raising, personal stories continue to play an important role in helping people recognize that their experiences of oppression or discrimination are not isolated. In the third wave, these stories are still very much a part of consciousness-raising, except that these personal stories tend to appear in public venues like anthologies, books, and feminist magazines such as Bitch and Bust. Furthermore, these stories function as a major rhetorical component of consciousness-raising due to the diversity of texts available. Women may engage in consciousness-raising with their female friends and colleagues, but these books allow their readers to engage with a number of ideas they may not encounter in their personal or professional lives.35
Third wave feminism has broadened the understanding of positionality and standpoint theory, and brought further questions regarding epistemology and truth, but I would argue that the ongoing advancement of positionality and consciousness-raising
legitimises the overarching methodological character of standpoint theory. I believe the issues of essentialism and exclusion, as taken up by the third wave, lie in Marxian
over-32bell hooks, “Postmodern Blackness,” Postmodern Culture, 1(1), (1990); bell hooks, Yearning: Race,
Gender, and Cultural Politics, (Toronto: Between-the-Lines, 1990); Jennifer Baumgardner and Amy Richards, Manifesta: Young Women, Feminism, and the Future(New York: Farrar, Straus and Giroux, 2000); Rebbeca Walker, To Be Real: Telling the Truth and Changing the Face of Feminism(New York: Anchor, 1995); Rebbeca Walker, "Becoming the Third Wave". Ms. Magazine,11(2), (2000) p. 39–4; Collins, Black Feminist Thought; Chandre Talpade Mohanty, Ann Russo, and Lourdes Torres, Third World Women and the Politics of Feminism, (Bloomington, Indiana: Indiana University Press, 1991); Chandre Talpade Mohanty, Feminism Without Borders,(Durham, NC: Duke University, 2003).
33Stacey. K. Sowards and Valerie. R. Renegar, “The Rhetorical Function of Consciousness-Raising in the
Third Wave,” Communications Studies, 55(4), (Winter, 2004): 535 – 552.
34Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth
or Justice?”, 372.
35Sowards and Renegar, “The Rhetorical Function of Consciousness-Raising in the Third Wave,” 541 –
emphasis on the ‘macroprocesses of power’36, commonly found in standpoint theories.
Inclusion of intersections with race, sexuality, class, and disability is to be welcomed and is not, as some fear, the widening of feminist collective consciousness to the point of subjectivity.37The voices widening the understanding of consciousness, positionality
and experience within feminism, have commonly been misunderstood to be more epistemologically divergent than is the case. Intersectionality has broadened the methodologies of radical feminism, and has ‘rooted and shifted’38the locus to
intersections of race, nation, sexuality, and class, but rather than challenging the epistemological character of (radical) feminism, it has, in fact, further established it as materialist, post-positivist, and critical realist. Its focus on collective standpoint,
experience and location is ‘antithetical to that of post-modernist relativism.’39Chandra
Talpade Mohanty takes up the issue of intersectionality and subjectivity, in Feminism Without Borders, where she revisits her 1986 essay, ‘Under Western Eyes’40, and
defends it against misappropriation by Western post-modern political thought. Her work ‘draws on historical materialism and centralizes racialized gender’41; emphasising
difference and multiply-mediated intersections of oppression, including: gender, race, (hetero)sexuality, class, and nation. She argues her work has been misread by post-modernists and interpreted ‘as being against all forms of generalization and as arguing difference over commonalities.’42Mohanty argues that while Western post-modernism
‘privileges multiplicity in the abstract’43, post-colonial feminism recognises that
differences, rooted in material, social, historical and geographical locations, are never ‘just “differences.”’44This is not to underestimate or undermine the contribution of
post-modernist feminist scholarship to the third wave45, nor to suggest that my own
36Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth
or Justice?,” 371.
37Hartsock is right to suggest: ‘[t]o claim we can understand the totality of social relations from a single
perspective is as futile an effort as to claim that we can see everything from nowhere.’ Hartsock, “Comment on Hekman’s “Truth and Method: Feminist Standpoint Theory Revisited”: Truth or Justice?,” 371.
38Nira Yuval-Davis, Gender and Nation(London: Sage Publications, 1997): 130 –131. 39Mohanty, Feminism Without Borders, 231.
40Chandre Talpade Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses,”
Feminist Review, 30, (1988): 61 – 88.
41Mohanty, Feminism Without Borders, 231. 42Mohanty, Feminism Without Borders, 231.
43Chandre Talpade Mohanty, “Cartographies of Struggle Third World Women and the Politics of
Feminism” InMohanty, Torres, and Russo, eds., Third World Women and the Politics of Feminism, 37.
44Mohanty, Feminism Without Borders, 226.
45Walker, To Be Real: Telling the Truth and Changing the Face of Feminism; Walker, "Becoming the Third
Wave". Ms. Magazine; Leslie Heywood and Jennifer Drake, Third Wave Agenda: Being Feminist, Doing Feminism, (Minnesota: University of Minnesota Press,1997); bell hooks, “Postmodern Blackness,”;
understanding and approach, or the approach formed within the international legal response to violence against women, is not informed by post-modernist thought and its challenge to the radical roots of the second wave. This said, I agree with Mohanty’s defence of her work on the key issue of collective consciousness and group identity, and – as it relates specifically to the chapter at hand – the use of ‘the collective’ as a source of knowledge and wisdom. More will be said on the role of community as it relates to constructing new knowledge and progressing change, but at this point it is important to reflect on Mohanty’s characterisation of her work as ‘antithetical to post-modernist relativism’, and to recognise that the same critique applies to my
appreciation of positionality and the widening of standpoint theory to become more fully intersectional. From this critical stance it would be wrong, however, to reason that post-modernist approaches to standpoint must be wholly abandoned, or that my approach is opposed to post-modernist feminism. Rather, I align with Mohanty’s understanding of the conflict between materialist, critical realist appreciations of
identity, consciousness-raising and the collective, and the Western third wave emphasis on the individual as separate from the other and from the collective. Again, this is not to negate the reality or the role of difference, or the move towards anti-essentialism, the politics of difference, or claims to the ‘decentred’46or ‘reconstituted’ subject47– all
notable post-modernist contributions of the third wave48. Rather, the critique offered
by Mohanty, which I uphold in my own emphasis on collectivity, is simply to argue that ‘differences constitute rather than undermine collectivity’.49In this sense, the calls for
intersectionality to be integrated into feminist theory and praxis during the later half of the second wave50are further reinforced by third wave post-modernist emphasis on
Heckman, “Truth and Method: Feminist Standpoint Theory Revisited”; Linda Nicholson,
Feminism/Postmodernism, (New York: Routledge, 1990); Stacy Gillis and Rebecca Munford, “Genealogies and generations: the politics and praxis of third wave feminism,” Women’s History Review,13(2), (2004), 165 – 182.
46See the Thinking Gender series edited by Linda Nicholson – in particular Judith Butler’s work on
identity: Judith P. Butler, Gender Trouble: Feminism and the Subversion of Identity, (New York: Routledge, 1990).
47Heckman, “Truth and Method: Feminist Standpoint Theory Revisited”, 345. 48Nicholson, Feminism/Postmodernism.
49MacKinnon, Toward a Feminist Theory of the State, 86. Whilst feminists speak to the particular tension
with regard the individual and the group caused by post-modernism, this sits in a far-wider project to redeem constructivist and progressive politics from ‘modernism’s dusk’, with Hutchinson arguing that ‘there is no contradiction between continuing loyalty to postmodern strategy and the practical realization of a radical political agenda.’ Allan C. Hutchinson, “Review: Inessentially Speaking (Is There Politics after Postmodernism?)” Michigan Law Review, 89(6), (1991), 1549 – 1573, 1550.
50Kimberle Crenshaw was first to use the term intersectionality, which provided a critical political
framework for feminism to more fully appreciate the overlapping connections, oppressions, and identities defined by race, sexuality, nation, and disability. This term became a framework for the efforts
multiplicity51, but this multiplicity does not necessarily elevate individuation and
separateness over collectivity. This will be looked at later in this chapter when I consider the role of community and difference in forming knowledge and reconstructive politics.
Returning now to the issue of standpoint, we see in the broadening of the
understanding of consciousness and positionality – brought about by the third wave – the expansion of ‘standpoints’. Whilst the label and trappings of Marxian standpoint theory have been questioned and consequently disregarded by many groups, the significance of positionality – as both constructed and counterhegemonic – remains, and the methods of consciousness-raising and questioning persist.
Whilst it might seem strange then to ‘revert’ to second wave thought, I believe the essentials of standpoint theory, as agreed upon by the third wave, are well (although not fully) articulated by radical feminists, such as MacKinnon, who have always advanced the positionality of women as both (at least partly) constructed (and reconstructed) and at the same time counterhegemonic. In this way I believe
MacKinnon articulates a view of consciousness and positionality that resonates with the third wave critique of her Marxian contemporaries. MacKinnon gives the following characterisation of the positionality of feminist consciousness:
of a number of key critical race theorists who had challenged the whiteness of second wave feminism during the 1980s. Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color,” Stanford Law Review,43(6), (July 1991): 1241 – 1299; Kimberle Crenshaw, “Race, Reform and Retrenchment: Transformation and Legitimation in Anti Discrimination Law,” Harvard Law Review,101, (1988): 1331 – 1387; Kimberle Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics.” University of Chicago Legal Forum, (1989): 139 – 167; bell hooks, Yearning: Race, Gender, and Cultural Politics; Gloria T. Hull, Patricia Bell Scott, and Barbara Smith, But Some of Us are Brave, (New York: Feminist Press, 1982); Gloria E. Anzaldúa and Cherríe Moraga, eds., This Bridge Called My Back: Writings by Radical Women of Color,(Watertown, MA: Persephone Press, 1981); Patricia Collins and Simra Bilge, Intersectionality, (Malden: Polity Press, 2016);
51In her analysis of third wave anthologies from 1995 – 2006, Meredith Evans highlighted four key
themes: ‘inclusion, multiplicity, contradiction, and everyday feminism.’ Meredith A. Evans and Chris Bobel, “I am a Contradiction: Feminism and Feminist Identity in the Third Wave,” New England Journal of Public Policy,22(1), (2007): 207. These same themes are highlighted in similar anthologies and analysis of Third Wave themes: Mary P. Sheridan-Rabideau, Girls, Feminism, and Grassroots Literacies: Activism in the GirlZone, (Albany: State University of New York Press, 2008); Hokulani Aikau, Karla Erickson, Wendy Leo Moore, “Three Women Writing/Riding Feminism’s Third Wave”, Qualitative Sociology, 26(3), (September 2003): 397 – 425; R. Claire Snyder, “What is Third-Wave Feminism? A New Directions Essay,” Signs, 34(1), (Autumn 2008):175 – 196; Stacy Gillis, Gillian Howie, and Rebecca Munford, eds.,
The practice of a politics of all women in the face of its theoretical impossibility is creating a new process of theorising and a new form of theory. Although feminism emerges from women's particular experience, it is not subjective or partial, for no interior ground and few if any aspects of life are free of male power. […] Feminism does not begin with the premise that it is unpremised. It does not aspire to persuade an unpremised audience because there is no such audience. Its project is to uncover and claim as valid the experience of women, the major content of which is the devalidation of women's experience.52
She further explains the context of male dominance:
Its point of view is the standard for point-of-viewlessness, its particularity the meaning of universality. Its force is exercised as consent, its authority as participation, its supremacy as the paradigm of order, its control as the definition of legitimacy. Feminism claims the voice of women's silence, the sexuality of our eroticized desexualization, the fullness of “lack”, the centrality of our marginality and exclusion, the public nature of privacy, the presence of our absence.53
Unlike standpoint theories, rooted in Marxian ideas of consciousness and truth, MacKinnon doesn’t base the validity of feminist consciousness on its proximity to ‘truth’ or ‘reality’. The marginalisation and subordination of this positionality are part of its significance, but are not privileged, commoditised, or objectified. Its project is not to articulate substantive change from an unpremised position but from that position to question the premise. It is distinct from any other substantive agenda – liberal, cultural, Marxist – and is simply feminist, or ‘feminism unmodified.’54In claiming as valid the lived
experience of women it challenges the dominance of men and the subordination of women. In this way critique, question and deconstruction operate as method.
Likewise, feminism as a method has been talked about by Bartlett as ‘“asking the woman question,” which is designed to identify the gender implications of rules and
52MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” 638. 53MacKinnon, “Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence,” 638 – 639. 54Catherine MacKinnon, Feminism Unmodified.
practice which might otherwise appear neutral or objective.’55As she explains, ‘a
question becomes a method when it is regularly asked.’56In the case of ‘the woman
question’, feminists ask this regularly across many disciplines. In fact the ‘woman question’ is many questions, for instance: ‘have women been left out of consideration? If so, in what way; how might that omission be corrected? What difference would it make to do so?’57Identifying how standards, practices and the law are framed in a
specific male sense to the disadvantage and disempowerment of women, feminism works as a method for developing substantive norms. In this way feminism asked the ‘woman question’ of violence against women and identified it as gendered and discriminatory – not arbitrary in any sense, but oppressive, and a cause and
consequence of disadvantage and discrimination (see Chapter 2). The continuing of feminist method within the human rights discourse, asking further questions, has developed substantive norms around the prevention and elimination of violence against women, in particular: addressing root causes, gender specificity, and
empowerment. These substantive norms are not subjectively chosen but they are the outworking of legal method. Without method we would choose substance
indefensibly, whereas method works to ‘provide an appropriate constraint upon the application of substantive rules.’58
The deconstruction of the partial and the construction of substantive feminist positions is rooted in the lived experience of women. The ability to ask the ‘woman question’ in an authentic way is the primacy of positionality and consciousness-raising. Through consciousness-raising women are able to engage with their own lives, and as they live them, to question their own situation, and to determine collectively where that question lies in the world and how it might be answered.
The technique explores the social world each woman inhabits through her speaking of it, through comparison with other women’s experience, and through women’s experience of each other in the group itself.59
55Bartlett, “Feminist Legal Matters,” 837. 56Bartlett, “Feminist Legal Matters,” 837. 57Bartlett, “Feminist Legal Matters,” 837. 58Bartlett, “Feminist Legal Matters,” 832.
Consciousness-raising is perhaps the most unifying methodological approach of feminist theory. It runs throughout Marxist, liberal and radical feminism, and has spanned the first, second and third waves. Whilst questioning by third wave feminists of the second wave’s approach to ‘asking the woman question’, has shone light on the need to expand the collective voice, it has maintained the method of consciousness-raising: ‘Consciousness among women is what caused this, and consciousness, one's ability to open their mind to the fact that male domination does affect the women of our generation, is what we need…’60albeit a ‘[c]onciousness that acknowledges the
complexities of crosscutting relations of race, gender, class, and sexuality.’61
Consciousness-raising works as an ‘interactive and collaborative process’62to reveal
which of a woman’s individual experiences share meaning and resonate with the wider experience of women. Elizabeth Schneider explains that the methodological character of consciousness-raising functions to reveal ‘the social dimension of individual
experience and the individual dimension of social experience’63. In this way
consciousness-raising understands the personal as political and raises broad and public awareness of the oppression(s) of women.64Consciousness-raising as a methodological
tool serves to keep the relationship between feminist epistemology, theory and substance defensible. MacKinnon asserts: ‘The key to feminist theory consists in its way
of knowing. Consciousness-raising is that way.’65Consciousness-raising works as
verification66and ‘meta-method’67, where it ‘provides a substructure for other feminist
methods […] by enabling feminists to draw insights and perceptions from their own experiences and those of other women and to use these insights to challenge dominant versions of social reality.’68As a meta-method, consciousness-raising
challenges the dominant ‘truth’, but more fundamentally, it ‘challenges the concept of knowledge’69. Positionality as revealing counterhegemonic wisdom is grounded in the
meta-method of consciousness-raising.
60Baumgardner and Richards, Manifesta, 11. 61Collins, Black Feminist Thought, 122 – 132. 62Bartlett, “Feminist Legal Matters,” 863.
63Schneider, “The Dialectic of Rights and Politics: Perspectives from the Women’s Movement,” 603. 64Adrienne Rich, On Lies, Secrets, and Silence: Selected Prose, 1966 – 1978 (New York: Norton, 1979),
44; Pamela Allen, Free Space: A Perspective on the Small Group in Women’s Liberation (New York: Time Changes Press, 1970), 27; MacKinnon, Toward a Feminist Theory of the State, 95.
65MacKinnon, Toward a Feminist Theory of the State, 84. 66MacKinnon, Toward a Feminist Theory of the State, 87. 67Bartlett, “Feminist Legal Matters,” 866.
68Bartlett, “Feminist Legal Matters,” 866. 69Bartlett, “Feminist Legal Matters,” 867
Positionality is undoubtedly key to deconstruction as method. Women are uniquely placed to ask the deconstructive questions of ‘(how) have women been left out?’ Deconstruction is the bedrock of feminist method. However, women are also uniquely placed to ask: ‘how might that omission be corrected?’ This is a more complex
question as it comes with the weight of constructing something different, and without thorough recourse to method, it carries the potential to ‘recreate the illegitimate power structure [they suggest they are] trying to identify and undermine.’70
This method of asking the woman question can be seen in Chapter 2. The theoretical framework for the human rights approach to violence against women and primary prevention has been reached by feminist method – exposing those social practices, rules and laws that disadvantage women. To assess the due diligence standard and systemic prevention I will continue to ask the woman question as a method to see what it exposes and to consider how it can be incorporated as a methodological tool into the conceptualisation of state responsibility itself.
Further to this though, Bartlett suggests part of this method is to ‘suggest how they [oppressive social practices, rules or laws] might be corrected.’71It is at this point that
feminism as a methodology goes from questioning, critique and deconstruction to suggesting substantive change and construction. I wish to explore this further as I believe it raises questions about the relationship between methodology and substance.
As I develop my thesis I expect my methodology to have a relationship to substantive law – namely prevention, State responsibility and systemic due diligence – but I must retain a defensible relationship between my methodology and any evaluation and clarified outline of due diligence. However, I keep in mind the goal of change and also the arguably male evaluation of method and theory. Moira McConnell questions the use of ‘theory’ and ‘method’ as litmus tests to challenging the status quo. She suggests that critics of the establishment are often accused of having weak theory or the opposite, having ‘just theory’, by those defending the established position. Mohanty suggests that ‘epistemological questions arise through the politicisation of
consciousness’72– spurred on by the need to negotiate the connections between
70Joseph Singer, “Should lawyers care about philosophy?” Duke Law Journal, 38(6), (1989), 1753. 71Bartlett, “Feminist Legal Matters,” 837.
‘collective consciousness [and] historical and institutional questions.’73McConnell
contends that the ‘designation ‘theory’ [is] a political statement as to the existence of some non-theory position […] imagined by the men who have dominated the world’s power structures.’ 74I will seek to remain epistemologically and methodologically
consistent and defensible of my relationship between theory, method and substance whilst also keenly pursuing a substantive change to the ‘non-theory position’ or ‘reality’ defined and dominated by men; recognising questions of ‘truth’ and ‘knowledge’ are also questions of ethics and power.
Part 2: Constructing Knowledge
Again, to understand the nature of feminist constructive method is to understand the primacy of consciousness-raising and positionality to feminist epistemology. The second part to Bartlett’s ‘woman question’, to ask how the exclusion and oppression of women ‘might be corrected’75, is rooted in positionality, and more specifically in the
epistemological difference between knowledge and wisdom.76As Chandra Talpade
Mohanty explains, it is the ‘lived relations’ that are the ‘basis of knowledge’77for
women and the crucible of change. It is from that place that women understand their creation and construction as women, and reconstruct and recreate themselves, and in the process define alternative futures; offering instead: ‘what might be’. Mohanty offers a similar arrangement to Bartlett’s two-part ‘questioning’, when she describes the discursive space created by testimonials and group consciousness. Mohanty calls out the centrality of ‘remembering and rewriting’ to feminist analysis.78Remembering acts
with deconstructive purpose: ‘correcting the gaps, erasures and misunderstandings’79.
Rewriting works with constitutive and constructive effect, leading to the ‘formation of a politicised consciousness and self-identity’80. It is worth stressing again that it is the
‘politicisation of consciousness’ that provokes such scrutiny and examination of the
73Mohanty, “Cartographies of Struggle Third World Women and the Politics of Feminism,” 39. 74Moira McConnell, “Feminist theory as the Embodiment of Marginalisation,” InReconceiving Reality:
Women in International Law, edited by Dorinda. D. Dallmeyer, Studies in Transnational Legal Policy No. 25. (Washington, DC: The American Society of International Law, 1993), 63.
75Bartlett, “Feminist Legal Matters,” 837. 76Collins, Black Feminist Thought, 275 – 6.
77Mohanty, “Cartographies of Struggle Third World Women and the Politics of Feminism,” 35. 78Mohanty, “Cartographies of Struggle Third World Women and the Politics of Feminism,” 34. 79Mohanty, “Cartographies of Struggle Third World Women and the Politics of Feminism,” 34. 80Mohanty, “Cartographies of Struggle Third World Women and the Politics of Feminism,” 34.
